“Binding Mandatory Arbitration”: The Return to “Master” and “Servant” -ART
© By Christy B. Bishop, Esq.
Attention employees: Did you know that your employer owns you?
If your employer “adopts” a mandatory arbitration program (often referred to as “Dispute Resolution Programs”) you may be forced to give up your constitutional right to access to a court and jury merely by showing up for work the next day. That is what the federal Sixth Circuit Court of Appeals (governingOhio,Kentucky,Michigan, andTennessee) has recently ruled.
The employee in question, a former server at a restaurant, one day was handed a portion of an “arbitration agreement” that required her signature to be effective, as well as the signature of her employer. She wrote on it:
“I cannot sign this as I have been contacted by an attorney(s) in regard to strong issues that have happened at Applebees.”
Twice she expressly wrote on “agreements” that refused to agree and would not sign. The employer gave up trying to get her to sign. She continued working there, thinking that she had preserved her right to file in court.
During this time, she was subject to egregious harassment and retaliation; the company even admitted under oath that her supervisor altered her time records so that she was not paid for the time she worked. (Yet, the company still kept the supervisor employed. It even paid the supervisor bonuses for “keeping down labor costs.”)
The harassed employee filed suit, never suspecting the arbitration agreement applied to her. A federal judge ruled that she had to arbitrate her claims anyway, and the Sixth Circuit Court of Appeals affirmed the decision.
The court basically said that just by showing up for work after learning the company had “adopted” an arbitration program meant that she (and allOhioemployees) give up their constitutional rights to file in court and have a jury decide their case. It doesn’t matter whether they sign an agreement or not. If they don’t want to forfeit their rights they should just “quit” their jobs on the spot. After all, they work at the pleasure of the company. The ultra-conservativeOhiolegislature and Ohio Supreme Court are also adopting similar laws.
How does Mandatory Arbitration Work?
Under mandatory arbitration, arbitrators are lawyers or businessmen who are paid by the company being sued. They are not judges, and they are not neutral. Mandatory arbitration programs are sold to companies by outside “entrepreneurs” as a way to preclude punitive damages and other awards to wronged employees from so-called “runaway juries.” There are no appeal rights and no class action rights. The employer’s conduct is kept private and there is no public record. In some cases, the employee has to pay the employer’s costs. Ever hypocritical, the company retains the right to sue the employee in court for civil matters, such as the violation of a covenant not to compete, but forces the employee to give up all rights to court or trial by jury. It’s an end-run around the Constitution backed by corporate-owned political interests. Small businesses generally do not benefit — rather, it is a form of corporate welfare for large, already-bloated corporations.
This is not the Dark Ages. Corporations don’t “own” employees, nor can we be permitted to go back to what the business lobby wants: reversion to the “master-servant” relationship.
As American citizens we’re guaranteed the right to trial by jury. That guarantee extends to civil as well as criminal cases. But as more judges with political agendas favoring business are appointed to the bench, access by common people to the courts is being destroyed.
Some impartial judges are concerned about this trend. Recently, The Federal Lawyer (July 2003) carried “An Open Letter to U.S. District Judges,” a candid thesis by William G. Young, a federal judge for the District Court of Massachusetts. Judge Young observed:
“The American jury system is withering away. This is the most profound change in our jurisprudence in the history of the Republic. . . . [M]ost remarkable of all — it has taken place without engaging any broad public interest whatsoever.”
Noting that government is “drawing away from its citizenry,” Judge Young underscored the importance of the American jury system — unique in all the world: “Through the jury, we place the decisions of justice where they rightly belong in a democratic society: in the hands of the governed.” But the Judge noted that many of his fellow jurists are “more intellectually concerned with the procedural mechanism that blocks jury trials than [they] are with trials themselves.”
Make Your Voice Heard!
We must fight to preserve the jury system — not just for use by businesses (who are notU.S.citizens), but for we Americans who live and work in this country and areU.S.citizens. Government exists by permission of the governed, not for the benefit of corporations or their minions in government who not only have been blatantly purchased by business interests, but who proudly flaunt it. Even our own government has spoken out against mandatory arbitration in employment; but no one in the courts seems to heed this warning. Check out the EEOC Statement on forced arbitration in employment.
Send us e-mail if you want more information on mandatory arbitration or other ways in which access to courts is being denied to the ordinary citizen. Employees are not the only ones being targeted by mandatory arbitration clauses — consumers are also being forced to arbitrate claims against unscrupulous businesses. Please get involved and protect your rights.
Only you can prevent the harm that is being done to our Constitution and legal system by business interests. Only you can make a difference.
More on employment & consumer arbitration:
Give Me Back My Rights
Facts about Employer Mandatory Arbitration Agreements
Employment Binding Mandatory Arbitration – NELA Site & How to Get Involved
Public Citizen View on Arbitration
National Employment Lawyers Association/Consumer Advocate joint press conference, C-Span,March 1, 2005(RealPlayer)
Article on Mandatory Arbitration by renowned lawyer and advocate, Cliff Palefsky (Adobe pdf format)
